Regulatory Systems (Economic Development) Amendment Bill

  • discharged on 11 September 2018

Regulatory Systems (Economic Development) Amendment Bill

Government Bill

74—1

Explanatory note

General policy statement

This Bill is 1 of a package of 3 omnibus Bills that contain amendments to legislation administered by the Ministry of Business, Innovation, and Employment (the Ministry). The policy objective of the Bill is to improve regulatory systems by ensuring that they are effective, efficient, and accord with best regulatory practice. The amendments will achieve this objective by—

  • clarifying and updating statutory provisions to give effect to the purpose of various Acts and their provisions:

  • addressing regulatory duplication, gaps, errors, and inconsistencies within and between different pieces of legislation:

  • keeping the regulatory system up to date and relevant:

  • removing unnecessary compliance costs and costs of doing business.

The amendments were identified as part of the Ministry’s regulatory systems work programme, which arises from the chief executive’s responsibility to relevant Ministers for the stewardship of the legislation administered by the Ministry under section 32 of the State Sector Act 1988.

The Bill responds to the New Zealand Productivity Commission’s June 2014 report, Regulatory institutions and practices. The New Zealand Productivity Commission found that it can be difficult to find time on the parliamentary calendar for “repairs and maintenance” of existing legislation. As a result, regulatory agencies often have to work with legislation that is out of date or not fit for purpose. This creates unnecessary costs for regulators and regulated parties and means that regimes may not keep up with public or political expectations.

This Bill is a vehicle for these smaller regulatory fixes to be made in a timely and cost-effective fashion in order to deliver the flow-on benefits to business and the wider economy.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides that the Bill comes into force 2 months after Royal assent.

Part 1Amendments to Building Societies Act 1965

Clause 3 provides that Part 1 amends the Building Societies Act 1965.

Clause 4 amends section 124, which relates to cancellation or suspension of registration of a society. Currently, this section provides that the Registrar may cancel or suspend with the approval of the Minister on certain grounds. The amendments do 3 things. First, they remove the requirement for ministerial approval before the Registrar cancels or suspends registration. Secondly, they change 1 of the grounds, so that under section 124(1)(c) the Registrar will no longer need to be satisfied that the society wilfully contravened any of the provisions of the Act. Thirdly, they remove the requirement for ministerial approval before the Registrar extends a suspension period.

Part 2Amendments to Companies Act 1993

Clause 5 provides that Part 2 amends the Companies Act 1993.

Clause 6 amends section 151 to disqualify a person from being a director of a company if the person is prohibited from being a director, or is prohibited from being concerned, or from taking part, in the management of a company, under the Insolvency Act 2006.

Clause 7 replaces section 280(1)(l), which relates to the qualifications of liquidators, with a paragraph that is similar in effect. New section 280(1)(l) aligns with new section 151(2)(baa) (as inserted by clause 6) and includes a reference to section 299(1)(b) of the Insolvency Act 2006.

Clause 8 repeals section 367, which is unnecessary as there are similar provisions in the Official Information Act 1982 and the Privacy Act 1993 that allow requests for information to be refused.

Clause 9 repeals section 368 as a consequence of the repeal of section 367.

Clause 10 amends section 382, which specifies persons who are disqualified, for a 5-year period following a relevant conviction, from being a director or promoter of a company, or from being concerned or from taking part in the management of a company, without the leave of the court. Clause 10(1) clarifies that section 382(1)(a) includes an offence under section 138A of the Act, which relates to a breach by a director of a company of the director’s duty to act in good faith and in the best interests of the company. Clause 10(3) adds persons convicted of an offence under section 143A(1)(d) or 143B(1) of the Tax Administration Act 1994 to the list of disqualified persons, as well as persons convicted of aiding, abetting, inciting, or conspiring with a person to commit an offence under section 143B(1) of that Act.

Clause 11 amends section 383, which sets out the grounds on which a court may disqualify a person from being a director or promoter of a company or from being concerned or taking part in the management of a company. The amendments are similar to those made by clause 10 to section 382 of the Act. Clause 11(1) clarifies that section 383(1)(a) includes an offence under section 138A of the Act. Clause 11(2) adds a new ground, allowing for the disqualification of a person who has been convicted of an offence under section 143A(1)(d) or 143B(1) of the Tax Administration Act 1994 or of aiding, abetting, inciting, or conspiring with a person to commit an offence under section 143B(1) of that Act.

Clause 12 amends section 391 to allow documents to be sent by email to a creditor that is a body corporate.

Clause 13 amends clauses 6 and 7 of Schedule 1 to allow a notice of a shareholders’ meeting to specify a time that is less than 48 hours before the meeting as the time by which shareholders must cast proxy votes and electronic votes.

Part 3Amendments to Continental Shelf Act 1964

Clause 14 provides that Part 3 amends the Continental Shelf Act 1964.

Clause 15 amends section 5(2) and (4) to replace references to the Minister of Energy with references to the Minister of Energy and Resources.

Clause 16 amends section 5A, which relates to payments and contributions with respect to the exploitation of the continental shelf 200 nautical miles or more beyond New Zealand’s territorial sea. The section applies to permits in respect of the exploration or prospecting for, or the mining of, minerals (including petroleum). The amendment removes references to prospecting because there is no need to specify a royalty rate for prospecting permits (no royalties are payable).

The amendments also align references to Ministers (to refer to the Minister of Energy and Resources).

Clause 17 amends section 9 to replace a reference to the Minister of Energy with a reference to the Minister of Energy and Resources.

Part 4Amendments to Credit Contracts and Consumer Finance Act 2003

Clause 18 provides that Part 4 amends the Credit Contracts and Consumer Finance Act 2003.

Clause 19 amends section 9C to provide that the lender responsibility principles set out in section 9C(2)(a) apply in relation to relevant insurance contracts.

Clause 20 amends section 14 to provide that Part 3A, which relates to the repossession of consumer goods under a credit contract, does not apply to a credit contract if, before entering into the contract, the debtor makes a declaration that the credit is to be used wholly or predominantly for business or investment purposes.

Clause 21 amends section 83C to clarify that Part 3A does not apply where a security interest over consumer goods is granted by a body corporate.

Clause 22 amends section 99B, which prohibits enforcement of a credit contract if any creditor is not registered as required under Part 2 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008. Clause 22 amends section 99B to limit its application to consumer credit contracts, a subset of credit contracts under which the debtor is a natural person and the credit is used, or intended to be used, for personal, domestic, or household purposes.

Clause 23 amends section 102A to prescribe 2 new infringement offences for breaches of section 9K. Section 9K requires a creditor to publish information about all the costs of borrowing in relation to every class of contract the creditor offers. Section 9K(4) requires a creditor to provide a copy of this information free of charge to any person who requests it. Clause 23 creates an infringement offence for a breach of section 9K(4). It also creates an infringement offence for a breach of section 9K(6), which requires that the published information contain the information prescribed in regulations. An infringement offence is committed if no information is provided for the purposes of a requirement in the regulations.

A person who commits an infringement offence may be required by an infringement notice to pay an infringement fee of up to $2,000 or may be liable on conviction for a fine of up to $10,000 (for an individual) or $30,000 (for a body corporate).

Clause 24 amends section 103 to add the offence in sections 9J (failing to publish standard for contract terms) and 9K (failing to publish costs of borrowing) as prosecutable offences with maximum penalties of $200,000 (for an individual) or $600,000 (for a body corporate).

Clause 25 and Schedule 2 amend Schedule 1AA (application, savings, and transitional provisions). New clause 4 allows a creditor under a credit agreement that was in place before Part 3A of the Act (which relates to repossession) came into force to opt into the repossession scheme provided by that Part.

Clause 26 and Part 1 of Schedule 1 amend the Credit Contracts and Consumer Finance Regulations 2004 in consequence of the amendments made to section 99B (see clause 22).

Part 5Amendments to Fair Trading Act 1986

Clause 27 provides that Part 5 amends the Fair Trading Act 1986.

Clause 28 amends section 30, which requires persons supplying goods to comply with product safety standards. The amendment clarifies that it is not only the person supplying the goods that must comply with the standards: the goods themselves must also comply.

Part 6Amendments to Financial Reporting Act 2013

Clause 29 provides that Part 6 amends the Financial Reporting Act 2013.

Clause 30 amends section 20 to allow auditing and assurance standards to include standards for agreed-upon procedures engagements. An agreed-upon procedures engagement may involve an auditor carrying out procedures of an audit nature to which the auditor and an entity (and any appropriate third party) have agreed and reporting on factual findings.

Part 7Amendments to Geographical Indications (Wine and Spirits) Registration Act 2006

Clause 31 provides that Part 7 amends the Geographical Indications (Wine and Spirits) Registration Act 2006.

Clause 32 amends section 7, which contains the definitions relating to registered geographical indications, in consequence of the changes made to sections 47A to 47D.

Clauses 33 to 35 amend sections 42, 45, and 45A, which relate to the register, in consequence of the changes to the procedure for renewing the registration of geographical indications.

Clauses 36 to 38 replace sections 47A, 47C, and 47D and amend section 47B. Those sections relate to the procedure for renewing the registration of geographical indications. The changes to these provisions mirror the changes being made to the Trade Marks Act 2002 by Part 13 of this Bill.

Currently, the registration of a geographical indication lasts for 5 years and may be renewed by an interested person for successive periods of 10 years. If the registration is not renewed before the expiry date, the geographical indication is removed from the register on its expiry date. However, at any time in the following 12 months an interested person may apply to restore the geographical indication to the register. During that 12-month period, although the geographical indication is no longer registered, it must still be taken into account in determining the registrability of applications to register other geographical indications or trade marks.

The current situation causes confusion about the status of the geographical indication and can create difficulties for future applicants. The amendments will reverse this situation so that when a geographical indication’s registration expires, it will remain on the register during the possible renewal period. However, during that period, although it remains a registered geographical indication for most purposes, it is declared not to be a registered geographical indication for the purposes of sections 21 to 24 (which impose restrictions on the use of geographical indications).

Clause 39 and Part 2 of Schedule 1 amend the Geographical Indications (Wine and Spirits) Registration Regulations 2017 in consequence of the changes to the procedure for renewing the registration of geographical indications.

Part 8Amendments to Insolvency Act 2006

Clause 40 provides that Part 8 amends the Insolvency Act 2006.

The amendments in clauses 41(1), 42 to 44, 60 to 64, 66 to 69, 71, 72(2), 73 to 77, 79, 80, 84, 85, 86(1), 87, and 88 provide for summary instalment orders to be renamed debt repayment orders. All summary instalment orders made before this Part commences are continued. From commencement, all provisions of the Insolvency Act 2006 that apply to debt repayment orders will apply to summary instalment orders, except where the Bill makes other substantive changes to those provisions (see Schedule 3).

Clause 41(2) inserts a definition of excluded debt for the purposes of a debt repayment order or the no asset procedure. It also inserts a definition of current debt repayment order, which reflects the renaming of summary instalment orders as debt repayment orders.

Clause 45 amends section 67 to allow the Assignee to reject an incorrect or incomplete statement of affairs filed by a bankrupt in the case of a creditor-initiated bankruptcy. This power is already available to the Assignee in the case of a debtor-initiated bankruptcy.

Clause 46 amends section 149 to prohibit a bankrupt, except with the consent of the Assignee, from working without reward for a relative or for a company, trust, trustee, or incorporated society owned, managed, or controlled by a relative. The Act already prevents a bankrupt from being employed by a relative or a company, trust, trustee, or incorporated society owned, managed, or controlled by a relative.

Clause 47 replaces sections 158 and 159, which allow a bankrupt to retain certain assets, with a revised section 158. Section 158 currently allows the bankrupt to retain necessary tools of trade and household furniture and effects only up to a maximum value fixed by the Assignee. New section 158 is similar, but does not allow the Assignee to fix a maximum value.

Clauses 48 and 50 amend sections 160 and 162 as a consequence of the replacement of section 159.

Clause 49 repeals section 161. A similar provision relating only to the maximum value of a motor vehicle is included in new section 158(3).

Clause 51 amends section 165 to allow the Assignee to require information and assistance from the bankrupt and certain other persons.

Clause 53 amends section 178 to remove the requirement that a record of a public examination of a bankrupt be read to the bankrupt before the bankrupt signs it. Instead, the court may read the record to the bankrupt if the bankrupt requests the court to do so.

Clause 54 amends section 193 to allow for the extension of any 5-year period referred to in subpart 7 of Part 3.

Clause 55 amends section 233 to remove the requirement for a creditor to submit a creditor’s claim form by the time specified by the Assignee. The consequences of failing to submit a form by the specified time are dealt with in new sections 233A and 233B.

Clause 56 inserts new sections 233A and 233B. New section 233A provides that a creditor who fails to submit a creditor’s claim form within the time specified by the Assignee is not entitled to receive the benefit of the first distribution by the Assignee of the bankrupt’s assets. However, the Assignee may choose to include the creditor in the distribution if the creditor submits the claim before the distribution is made. New section 233B applies if a creditor fails to submit a claim before the first distribution but their claim is admitted after that distribution. It provides that the creditor is entitled to receive the benefit of the first distribution if any assets remain or are likely to remain.

Clause 57 replaces section 282, which defines undistributed money for the purposes of sections 283 to 289, with a similar section. The replacement section includes money paid under a debt repayment order that is not able to be distributed.

Clause 58 replaces section 286, which sets out how money held in the bankruptcy surplus account may be used, with a similar section. The replacement section takes into account that, under the Act as amended by this Bill, the bankruptcy surplus account will hold money paid by debtors subject to debt repayment orders.

Clause 59 inserts new section 290A to provide that, if a bankrupt dies before filing a statement of affairs, the bankrupt is discharged from bankruptcy 3 years after death. Normally, a bankrupt (whether alive or dead) is discharged 3 years after filing a statement of affairs.

Clause 65 replaces section 343 with a similar section. However, new section 343 provides that the unsecured debts to which a debt repayment order relates may not include amounts owing under the Child Support Act 1991, a maintenance order under the Family Proceedings Act 1980, or a student loan (together, “excluded debt”). These excluded debts are not taken into account in determining the debtor’s total unsecured debts, which may be no more than $47,000 if the debtor is to be eligible for a debt repayment order. In new section 343, references to a summary instalment order are replaced with references to a debt repayment order.

Clause 70 replaces section 350A with a similar section. The current section 350A allows the Assignee to cancel a summary instalment order if the debtor is able immediately to pay the debtor’s unsecured debts. The relevant unsecured debts exclude any student loan balance. Under new section 350A, the relevant unsecured debts also exclude debts owing under the Child Support Act 1991 or a maintenance order under the Family Proceedings Act 1980.

Clause 72 amends section 352 to allow proceedings against a debtor in respect of whom a summary instalment order is made if the proceedings relate to amounts owing under the Child Support Act 1991, a maintenance order under the Family Proceedings Act 1980, or a student loan.

Clause 78 replaces section 358 with new sections 358 to 358B. New section 358 is similar to the current section 358, except it provides that money paid by the debtor that is unable to be distributed in accordance with new section 358(1) is to be paid to Public Trust. The current section 358(2) is repealed, but a provision to the same effect is inserted as new section 358A. New section 358B sets out the effect of a debtor’s discharge from a debt repayment order, which is similar to the effect of a discharge from the no asset procedure (see section 377A). Debts to which the debtor’s debt repayment order relates, including any penalties or interest on those debts, are cancelled upon discharge. However, this excludes debts incurred by fraud, which, along with any interest and penalties accrued, become enforceable again after discharge.

Clause 81 makes 2 substantive amendments to section 363. The first provides that the total debts taken into account in determining whether a debtor is below the $47,000 threshold for admission to the no asset procedure excludes debts owing under the Child Support Act 1991 or a maintenance order under the Family Proceedings Act 1980. The second provides that a debtor may not be admitted to the no asset procedure if the outcome for any creditor would be materially better if the debtor were adjudicated bankrupt instead. Clause 81 also replaces section 363(2) with a new subsection that is substantially the same, but more clearly expressed.

Clause 82 replaces section 374, which relates to the preservation of a debtor’s assets, with a similar section. However, new section 374 allows the Assignee to apply for an order preserving a debtor’s assets if the Assignee intends to apply for a reversal of the debtor’s discharge from the no asset procedure. New section 374 also provides that an order made under that section is effective from the time it is made.

Clause 83 inserts new sections 377C to 377E. New section 377C allows the court to reverse the cancellation under section 377A of a debtor’s debts. The cancellation of debts occurs upon a debtor’s discharge from the no asset procedure. The court may only reverse a cancellation of debts within 2 years of that discharge. New section 377D sets out the grounds for reversing a cancellation of debts. The grounds are that facts have been established that were not known to the Assignee when the debtor was discharged from the no asset procedure, and that, had those facts been known, the Assignee would have been justified in terminating the debtor’s participation in the no asset procedure under section 373(1)(a). Section 373(1)(a) allows the Assignee to terminate a debtor’s participation in the no asset procedure if the debtor was wrongly admitted (for example, because the debtor concealed assets or misled the Assignee). New section 377E provides that the effect of a reversal of a cancellation of debts is that the cancelled debts, and any interest or penalties accrued, become enforceable again.

Clause 86 amends section 449 to require the Assignee to publish any known alias or trading name of any person who is or has been bankrupt, who is subject to a debt repayment order, or who is admitted to, or has been discharged from, the no asset procedure. Clause 86(3) inserts new section 449(1)(ga), which requires publication of the date of a debt repayment order. Clause 86(4) amends section 449(1)(n) to require a supervisor’s electronic address to be published instead of the supervisor’s business postal address.

Clause 89 and Part 3 of Schedule 1 make amendments to other enactments that are necessary as a consequence of the amendments in this Part.

Clause 90 and Schedule 3 contain transitional, savings, and related provisions.

Part 9Amendments to Limited Partnerships Act 2008

Clause 91 provides that Part 9 amends the Limited Partnerships Act 2008.

Clause 92 amends section 8 to align the requirements about where general partners (or certain associated natural persons) must live with similar requirements that apply to directors of companies under section 10 of the Companies Act 1993.

Clause 93 amends section 19A(2), which lists persons who are disqualified from holding office as a general partner of a limited partnership. The amendment adds to the list—

  • a person who is prohibited from being a director of a company under section 299(1)(b) of the Insolvency Act 2006:

  • a person who is prohibited from being concerned, or taking part, in the management of a company under section 299(1)(c) of the Insolvency Act 2006.

Clause 94 amends section 52, which sets out the requirements for an application to register a limited partnership. The amendment provides that additional information prescribed in the Limited Partnerships Regulations 2008 (the regulations) is required if an application is made in reliance on new paragraph (a)(ii), (b)(ii), (c)(ii), or (e)(ii) of section 8(4) on the basis that a general partner (or a specified natural person) lives in an enforcement country. Clause 96 and Part 4 of Schedule 1 amend the regulations as a consequence of the amendment to section 52.

Clause 95 amends section 101 to provide that section 328(3)(a) of the Companies Act 1993 applies, with all necessary modifications, to a limited partnership. The effect of this amendment is to require the Registrar of Companies to give public notice before restoring a limited partnership to the register of limited partnerships.

Part 10Amendments to Personal Property Securities Act 1999

Clause 97 provides that Part 10 amends the Personal Property Securities Act 1999.

Clause 98 amends section 139 to remove the requirement that the personal property securities register be kept in New Zealand. Because the register is kept electronically, there is no justification for requiring it to be in New Zealand.

Clauses 99 to 101 amend sections 140, 142, and 172.

Section 140 sets out the information that must be recorded on the register. Currently, if the debtor is an incorporated organisation, this includes its unique incorporation number.

Section 172 sets out the criteria by reference to which the register may be searched. For an incorporated debtor, the criteria include the unique number assigned to the company by the Registrar of Companies on the registration of the company under the Companies Act 1993. This search criterion is problematic as it does not match the information recorded in the register under section 140 and creates difficulty when searching for overseas companies or organisations that are not companies (such as building societies or incorporated societies) that are not registered under the Companies Act 1993.

Section 140 is amended to ensure that,—

  • if an organisation has a New Zealand incorporation or registration number, that number is recorded; and

  • an organisation’s overseas incorporation number is used only if it does not have a New Zealand number.

Section 172 is amended to allow the register to be searched by reference to the numbers recorded under section 140. Section 142 (which relates to the data required to register financing statements) is amended to match the changes made to section 140.

Section 172 is also amended to remove from search criteria the name or job title, and contact details, of the person acting on behalf of an organisation. This information continues to be required under sections 140 and 142 but is removed as possible search criteria because it might produce misleading results.

Clause 102 and Part 5 of Schedule 1 make a consequential amendment to the Personal Property Securities Regulations 2001 to revoke regulation 15, which is rendered redundant by the amendment to section 172(b) of the Act.

Part 11Amendments to Plant Variety Rights Act 1987

Clause 103 provides that Part 11 amends the Plant Variety Rights Act 1987.

Clause 104 amends section 5 to give applicants for a grant of plant variety rights the option of nominating an address for service that is in Australia instead of New Zealand.

Clause 105 amends section 35 to allow for notices to be given, and documents to be served, by leaving them at, or sending them to, an Australian address that is the person’s usual or last known place of abode or the person’s address for service.

Clause 106 and Part 6 of Schedule 1 amend the Plant Variety Rights Regulations 1988 to reflect the fact that an address for service may be in Australia.

Part 12Amendments to Takeovers Act 1993

Clause 107 provides that Part 12 amends the Takeovers Act 1993.

Clause 108 inserts definitions of accounting period and subsidiary into section 2. It also replaces the definition of code company (which cross-refers to section 2A) as a consequence of the amendments made by clauses 109(5) and 110.

Clause 109 amends section 2A, which contains the substance of the definition of code company. Clause 109 replaces section 2A(1)(c), the effect of which is that a company with 50 or more shareholders and 50 or more share parcels (currently, a code company) is a code company only if that company is also at least medium-sized (defined, in new section 2A(4), by reference to total assets or total revenue of the company and its subsidiaries). Clause 109 also repeals section 2A(2) as a consequence of the amendments made by clause 110.

Clause 110 inserts new section 2AB. The rules applying to takeovers of code companies are set out in the Takeovers Code Approval Order 2000 (the takeovers code). New section 2AB is intended to make clear that all transactions and events that begin under the rules of the takeovers code are finished under the rules of the takeovers code. Under new section 2AB, if a company ceases to be a code company (as defined in section 2A) as a result of, or during, an event regulated under the takeovers code, the company continues to be treated as a code company—

  • for the purposes of completing the transaction or event (including, if relevant, applying the compulsory acquisition rules in Part 7 of the takeovers code); and

  • until the transaction or event is complete and all requirements of the takeovers code in relation to the transaction or event have been complied with.

Clause 111 and Schedule 4 contain transitional, savings, and related provisions.

Clause 112 revokes the Takeovers Code (Small Code Companies) Exemption Notice 2016 as a consequence of the amendments made by clause 109.

Clause 113 and Part 7 of Schedule 1 make consequential amendments to the takeovers code.

Part 13Amendments to Trade Marks Act 2002

Clause 114 provides that Part 13 amends the Trade Marks Act 2002.

Clause 115 amends the definition of registered trade mark in section 5 in consequence of the changes made to sections 59 and 60.

Clause 116 inserts new section 7A to give effect to the transitional, savings, and related provisions in new Schedule 1AA (which is inserted by clause 127).

Clause 117 inserts new section 13A. A certification trade mark is a mark that denotes independent certification by the owner of the mark that goods or services in respect of which it is used possess certain characteristics (for example, the Fairtrade logo). Under section 14, a certification trade mark cannot be registered in the name of a person who carries on trade in goods or services of the kind certified. New section 13A will ensure the reverse is also true—that a trade mark for goods or services cannot be registered in the name of a person who owns a certification trade mark for goods or services of that kind.

Clause 118 amends section 14 to ensure that a person who owns a trade mark in respect of goods or services is included as a person carrying on trade in those goods or services.

Clause 119 replaces section 53 to clarify that the Commissioner may issue a new certificate of registration at any time on application and payment of the prescribed fee. The new certificate replaces the existing one. This ensures that a trade mark owner can get a new certificate if the details of the trade mark’s registration changes, the certificate is lost or damaged, etc.

Clause 120 replaces sections 59 and 60, which relate to the renewal of a trade mark.

Currently, the registration of a trade mark lasts for 10 years. If the owner does not renew the registration before the expiry date, the trade mark is removed from the register on the expiry of the 10 years. However, at any time in the following 12 months the owner may apply to restore the trade mark to the register. During that 12-month period, although the trade mark is no longer registered, it must still be taken into account in determining the registrability of a later application.

The current situation causes confusion about the status of the trade mark and can create difficulties for future applicants. New sections 59 and 60 will reverse this situation so that when a trade mark’s registration expires, it will remain on the register during the possible renewal period. However, during that period, although it remains a registered trade mark for most purposes, it is declared not to be a registered trade mark for the purposes of subparts 1 to 3 of Part 4 (which relate to civil proceedings for infringement, criminal proceedings, enforcement officers, and border protection measures).

In addition to this change, the possible renewal period is reduced from 12 months to 6 months. Further, as the 6-month period is now stated in the Act, the Commissioner will no longer have power to extend the period. Previously, the 12-month period was specified in the regulations, so the Commissioner was able to exercise his or her power under regulation 32 of the Trade Marks Regulations 2003 to extend the period.

Clause 120 also repeals section 60A, which is made redundant by the amendments to the Geographical Indications (Wine and Spirits) Registration Act 2006 in Part 7 of the Bill.

Clauses 121 to 123 amend sections 65, 66, and 68, which relate to revocation of the registration of a trade mark, to clarify their operation. In particular, the changes make it clear that if a ground for revocation listed in section 66 is found to exist, the trade mark’s registration must be revoked.

Clause 124 replaces section 167, which relates to security for costs, to enable security for costs to be required from any party to proceedings under the Act, not just overseas parties as is currently the case. This is consistent with the position under the Patents Act 2013.

Clause 125 amends section 182 in consequence of the changes to the procedure for renewing the registration of trade marks.

Clause 126 repeals section 191, which allows guardians and others to do things for the purposes of the Act on behalf of persons who are under 18 or otherwise lack capacity. Section 191 is redundant because it replicates the powers conferred on guardians and others under the laws under which they are appointed or other general laws (such as the Care of Children Act 2004 and subpart 6 of Part 2 of the Contract and Commercial Law Act 2017).

Clause 127 and Schedule 5 contain transitional provisions so that the current period of 12 months during which a trade mark may be restored to the register continues to apply for trade marks that were removed from the register for non-payment of the renewal fee before the amendments made by this Act commenced.

Clause 128 and Part 8 of Schedule 1 amend the Trade Marks Regulations 2003 in consequence of the changes to the procedure for renewing the registration of trade marks.

Part 14Amendments to Weights and Measures Act 1987

Clause 129 provides that Part 14 amends the Weights and Measures Act 1987.

Clause 130 amends section 28, which relates to the powers of inspectors. Section 28(1)(h) allows an inspector carrying out an inspection of premises to require the production of documents relating to any goods kept, displayed, offered, or exposed for sale at the premises. This is amended to include documents relating to goods that have been sold as well as those still for sale.

Clause 131 amends section 32(i), (j), and (k), which creates offences relating to weights, measures, and weighing or measuring instruments (weighing equipment). Those paragraphs make it an offence to, among other things,—

  • sell weighing equipment that has a forged or altered mark or stamp:

  • sell weighing equipment that is incorrect or does not comply with the Act:

  • sell a stamped weight or measure that has been increased or diminished.

Section 32 is amended so that these offences will apply to the leasing of weighing equipment as well as sales.